Touli Samal and Others vs Suka Bewa and Others

Beevor, J.—It will be convenient to deal with these two appeals by one judgment because although they arise out of different suits, and argument was heard separately in the two appeals, both the appeals raise similar questions regarding the interpretation and effect of Section 236, Orissa Tenancy Act.

In S.A. No. 25 of 1942 the plaintiffs-appellants sued to eject defendant 1 from certain properties on the expiry of a lease for nine years executed by the plaintiffs in favour of defendant 1 on 12-6-1931. The history of the land is as follows. One Durga Charan was an occupancy raiyat and was as such recorded as in possession of 11 acres. He purchased the tenure-holder''s interest in 08 acres of that property. Defendant 1 of the present suit is his mother and on his death she inherited his properties. In 1923 defendant 1 executed a deed of gift in favour of her daughter, defendant 2, who in 1931 sold the property to the plaintiffs and at that time the lease was granted to defendant 1. The defence to the suit was first that the plaintiffs had acquired only the tenure-holder''s interest while the raiyati interest remained with defendant 1. This defence has been overruled by the lower appellate Court. The second defence was that defendant 1 had fraudulently been induced to enter into a contract of lease and the agreement was really on(c) for a permanent lease. This also the lower Courts-have disbelieved. A further defence was raised, namely, that defendant 1 was a raiyat and that the property now in suit is her homestead and, therefore, u/s 236, Orissa Tenancy Act, she is not liable to ejectment. Both the lower Courts have accepted this defence. Hence the appeal to this Court.

In S.A. No. 51 of 1912 the plaintiff appellants sued to eject the defendants as under-raiyats. Their suit was decreed by the trial Court and the defendants appealed with reference particularly to one portion of the land which they claimed was their homestead and they contended that as they were occupancy raiyats of other lands they were protected by Section 236, Orissa Tenancy Act, from ejectment from that portion of the land in suit. This contention was accepted by the lower appellate Court.

Section 236(1), Orissa Tenancy Act, runs as follows:

When a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage and subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.

It is not disputed that that land in suit in Appeal No. 51 is homestead of the defendants. One of the questions raised by this appeal, however, depends on the fact that the defendants have only recently become raiyats of other lands than the homestead and it is contended on behalf of the plaintiffs that in these circumstances Section 236, Orissa Tenancy Act, can have no application. In S.A. No. 25 of 1942 the question was raised whether the property in question was in fact the homestead of defendant 1. I should, therefore, deal with this question first.

The learned District Judge in his judgment in the lower appellate Court stated:

There is evidence upon the record which stands uncontradicted that defendant 1 has other raiyati land and is a raiyat. Therefore it seems to me that she is entitled to the protection of Section 236 as it does not seem to be denied that this land is the homestead.

In ground No. 2 of the memorandum of appeal reference was made to a passage in the judgment of the trial Court which runs:

The disputed land does not contain any house and at the time the patta was granted in favour of defendant 1 the said land was taken for growing vegetables.

It was argued that this finding had not been overruled by the lower appellate Court and that, therefore, the latter Court was wrong in applying Section 236. It seems to me that the statement by the lower appellate Court that it did not seem to be denied that the land was the homestead implied a reversal of this finding of the trial Court. In case, however, I was misunderstanding the judgment of the learned District Judge, I have referred to the evidence and I find that plaintiff 1, who gave evidence as p.w. 1, stated clearly in examination-in-chief immediately after his evidence regarding execution of the lease that:

Defendant 1 alone lived in the house after the settlement.... In the course of the last 4 or 5 years all the defendants are living in the disputed house.

Also P.W. 4 for the plaintiffs stated: "Defendant 2 and her mother, that is, defendant 1, are, however, living in the house standing on the suit land." I am, therefore, satisfied that the statement in the judgment of the learned District Judge was fully justified by the evidence and the finding that the land in suit is homestead cannot be assailed.

I have been referred to a number of reported decisions for the purpose of considering the effect of Section 286, Orissa Tenancy Act. Some of these decisions relate to the equivalent sections of the Bihar Tenancy Act or the Chota Nagpur Tenancy Act. Section 182, Bihar Tenancy Act and Section 78, Chota Nagpur Tenancy Act, are both in exactly the same words as Section 236(1), Orissa Tenancy Act. It may be noted that the Bengal Tenancy Act, Section 182, was originally in the same words, but has, in Bengal, been amended. Recent decisions of the Calcutta High Court regarding the effect of Section 182, Bengal Tenancy Act, as it now stands, cannot, therefore, be regarded as any authority for the interpretation of Section 236, Orissa Tenancy Act.

The earliest decision of this Court cited before me was Ganga Singh v. Chairman of the District Board, Patna AIR 1919 Pat. 108 where it was held that if a settled raiyat of lands in a village acquired other land as a raiyat apart from the lands of which he is a settled raiyat, for the purpose of creating a homestead thereon, then under the joint operation of S3. 21 and 182, Bengal Tenancy Act, (equivalent now to sections of the Bihar Tenancy Act) he acquires occupancy rights in such lands, even though the lands so acquired for the purpose of a homestead be not held under the same landlord as the lands in respect of which such tenant is a settled raiyat. This case, however, did not cover any question regarding the rights of a raiyat who holds his homestead on an under-raiyati tenancy. This point, however, was decided in the next case in Kanduri Sahu v. Arjun Sahu AIR 1922 Pat. 416 a case decided on the terms of Section 286, Orissa Tenancy Act. It was held that a suit in which the plaintiff as an occupancy raiyat tried to eject the defendants who were sikmi tenants under him from the homestead land which they were occupying under him was barred by Section 236, Orissa Tenancy Act, From the statement of facts it is clear that the defendants of the suit were raiyats of the village for lands in respect of which they had been recorded as sthitiban or occupancy raiyats. The judgment in the case is very short and stated that the case was concluded by the findings in Mohim Chandra v. Baidyanath AIR 1915 Cal. 514. It looks to me, however, as if the reference therein given is a mistake and that the correct reference should be to Krishna Kanta Ghosh v. Jadu Kasya AIR 1916 Cal. 32 which was a case under the old Bengal Tenancy Act, Section 182, and decided that the provisions of the Bengal Tenancy Act including the provisions of Section 182 applied to the homestead of a person who holds other lands as a raiyat not under the landlord of his homestead but under a different landlord and in a village different from that in which his homestead is situate and that in such circumstances the provisions of the Act applicable to a raiyat will, u/s 182 of that Act, regulate the incidence of the tenancy of the homestead though the tenant has only the interest of an under-raiyat with respect to it. The correct reference of this case was given in the next decision of this Court cited before me, namely, Bishnath Singh v. Mt. Bibi Ayesha AIR 1930 Pat. 224. In the latter case it was held that when an occupancy raiyat''s holding was sold for arrears of rent leaving him no other land except his homestead land the raiyat ceases to be a settled raiyat of the village one year after the sale of the holding and that if after such expiry of one year, the landlord again settles the land on the raiyat by a kabuliyat for a term of years, the raiyat is liable to be ejected from the land in question on the expiry of the term of the lease u/s 44(c), Bengal Tenancy Act. This decision shows that the provisions of the Bengal (now Bihar) Tenancy Act, and so also of the Orissa Tenancy Act will only apply to the homestead of a raiyat so long as he is a raiyat of other land.

The next decision of this Court cited was Mian Ahir v. Paramhans Pathak AIR 1939 Pat. 409, in which the question whether a tenant was a raiyat or an under-raiyat of a homestead was considered, but that decision did not deal with Section 286, Orissa Tenancy Act, or the equivalent sections of the Bihar Tenancy Act.

The terms of Section 182, Bihar Tenancy Act, were again considered by this Court in a recent case in Mahadeo Ashram Prasad v. Parikha Choudhari AIR 1945 Pat. 428, but as that decision did not deal with a case in which the homestead land was held on an under-raiyati tenancy, I do not think it affords any guidance to me in the present case.

In Badal Chandra Sadhukhan Vs. Debendra Nath Dey, , Mukerji, J. held that where a particular tenancy has a distinct and definite origin, Section 182, Bengal Tenancy Act, has no application, but I find that decision difficult to reconcile with the later decision of a Divisional Bench of the Calcutta High Court in Pulin Chandra Daw and Others Vs. Abu Bakkar Naskar, , and it certainly seems to be inconsistent with the decisions of this Court above cited.

I come, therefore, to the conclusion that on the authorities it is clear that even though the contesting defendants in these two appeals were under-raiyata in respect of the homestead in suit, this fact will not prevent the application of Section 236, Orissa Tenancy Act, to the tenancy of those homestead lands.

In both the present appeals it is urged that as the contesting defendants became raiyats of other land after the under-raiyati tenancy of the homestead land began Section 236, Orissa Tenancy Act, cannot be applied. I cannot find any justification for reading into Section 236 any term which would restrict it to cases where the homestead tenancy began either at the same time as or after the raiyati tenancy.

In S.A. No. 51 it has been held that the contesting defendant was an occupancy raiyat of other lands and I hold that this finding cannot be challenged in second appeal in this case. It follows, therefore, that the incidents of the homestead tenancy of the contesting defendant in this appeal will be regulated u/s 236, Orissa Tenancy Act, by the provisions of that Act applicable to an occupancy raiyat at present and so long as he remains an occupancy raiyat of the agricultural land. He cannot, therefore, be ejected in the present suit and this appeal must fail and is, therefore, dismissed with costs.

In Appeal No 25 it is urged that on the findings of the lower Courts the contesting defendant in this case was not an occupancy raiyat though she may have been a raiyat of other land and, therefore, u/s 52(c) she could be ejected when she had been admitted to occupation of the homestead under a registered lease on the ground that the term of that lease had expired. One answer given on behalf of the respondents to this argument was that a suit to eject a non-occupancy raiyat u/s 52, Orissa Tenancy Act, would, by reason of Section 193 of that Act, be cognizable by the Collector and not in the civil Court. As at present advised I am inclined to think that this answer is valid, but I do not propose to give a definite decision on the point because I think there is another answer to this contention, namely, the fact that although a registered lease was executed in favour of defendant 1 for a period of nine years it is not shown that she was admitted to the occupation of the land under that lease. On the contrary all the indications are that she had been on the land from long before that lease. I hold, therefore, that this appeal also must fail. It is, therefore, dismissed with costs.